Citation Nr: 1801737 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-06 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for bilateral hearing loss, and if so whether service connection is warranted. 2. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for tinnitus, and if so whether service connection is warranted. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis, and if so whether service connection is warranted. 4. Entitlement to service connection for cause of death. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran had active duty service in the United States Army from May 1968 to April 1970 and from December 1974 to December 1975. The Veteran passed away in June 2014, and the appellant is the Veteran's widow. As the Veteran passed away during the course of the appeal, his widow was substituted as the appellant. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2011 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the RO declined to reopen the claims of entitlement to service connection for bilateral hearing loss and tinnitus, but reopened the claim of entitlement to service connection for asbestosis. The Board finds that these determinations are not binding. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b) (2012). Therefore, the Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue. Butler v. Brown, 9 Vet. App. 167, 171 (1996). FINDINGS OF FACT 1. The Veteran was denied entitlement to service connection for bilateral hearing loss and tinnitus in the October 2010 Board decision. He did not appeal this decision during the requisite time period, and the Board decision became final. 2. Evidence received since the October 2010 Board decision is cumulative and redundant of the evidence of record at the time of the last prior final denial of the claims of entitlement to service connection for bilateral hearing loss and tinnitus, does not relate to an unestablished fact necessary to substantiate the claims, and does not raise a reasonable possibility of substantiating the claims. 3. The Veteran was denied entitlement to service connection for asbestosis in the February 2009 Board decision. He did not appeal this decision during the requisite time period, and the Board decision became final. 4. Evidence received since the February 2009 Board decision is new, relates to an unestablished fact necessary to substantiate the claim, and raises a reasonable possibility of substantiating the claim. 5. The probative, competent evidence is against a finding that the Veteran had asbestosis related to active duty service. 6. The Veteran's death certificate shows that he died in June 2014, and the immediate cause of death was due to cardiac arrest, acute respiratory failure from chronic rejection and pneumonia, and chronic fungal pneumonia; other significant conditions included bacterial pneumonia, pneumothorax, acute renal failure, and chronic obstructive pulmonary disorder (COPD). 7. At the time of the Veteran's death, he was not service-connected for any disabilities. CONCLUSIONS OF LAW 1. The October 2010 Board decision which denied the Veteran's claims for entitlement to service connection for bilateral hearing loss and tinnitus is final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2010). 2. Evidence received since the October 2010 Board decision is not new and material and, therefore, the claims for entitlement to service connection for bilateral hearing loss and tinnitus are not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 3. The February 2009 Board decision which denied the Veteran's claim for entitlement to service connection for asbestosis is final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2008). 4. Evidence received since the February 2009 Board decision is new and material and, therefore, the claim for entitlement to service connection for asbestosis is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for entitlement to service connection for asbestosis is denied. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). 6. The criteria for entitlement to service connection for the cause of the Veteran's death have not been met. 38 U.S.C. §§ 1103, 1310 (2012); 38 C.F.R. §§ 3.300, 3.303, 3.307, 3.309, 3.312 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist In a November 2017 brief, the appellant's representative generally argues that the VA examinations "did not adequately assess [the Veteran's] condition to his prejudice." Further explanation was not provided to indicate why the representative thought the examinations and opinions were not adequate. Initially, it is noted that VA does not have a duty to provide an examination or obtain a medical opinion for a previously denied service connection claim until new and material evidence is received and the claim for service connection reopened. The Board finds the opinions in this case are based upon consideration of the Veteran's prior medical history, including his lay statements, and also describe the disabilities in sufficient detail so that the Board's evaluation of the claimed disabilities will be a fully informed one. The examiners supported the conclusions such that the Board can consider and weigh the findings. Neither the Appellant nor her representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). There is also nothing in the record to suggest that the Veteran raised any issues with the duty to notify or duty to assist. New and Material Evidence A decision of the Board becomes final unless the Chairman of the Board orders reconsideration. See 38 U.S.C. §§ 7103, 7104; 38 C.F.R. § 20.1100. If new and material evidence is received with respect to a claim that has been disallowed, VA may reopen and review the former disposition of the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Only evidence presented since the last final denial on any basis (whether by the Board or RO, and whether upon the merits of the case or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 285 (1996). For purposes of determining whether to reopen a claim, the credibility of the recently submitted evidence will be presumed. See Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per curiam). In determining whether new and material evidence has been received to reopen a claim, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA's duty to obtain a VA examination. Id. at 118. Bilateral hearing loss and tinnitus The Board denied the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus in an October 2010 decision, finding that there was no nexus between these disabilities and active duty service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision within the requisite time period. Therefore, the Board decision is final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2010). In October 2010, the Board found that while the Veteran had a hearing loss disability and tinnitus there evidence was against a finding of an etiological link between these disabilities and service. In October 2011, the RO denied the claims administratively on the basis that no new and material evidence had been submitted to reopen the claims. The Veteran submitted a timely notice of disagreement in March 2012, and treatment notes were submitted showing that the Veteran received hearing aids and had audiometric testing for his hearing. These treatment notes established that there was a current disability but did not provide evidence of a nexus between the Veteran's active duty service and a current disability. Therefore, the RO found the evidence submitted did not relate to an unestablished fact necessary to substantiate the claims and did not raise a reasonable possibility of substantiating the claims. As noted, the requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b). Therefore, the Board will conduct a de novo review of the new and material evidence issue. Butler, 9 Vet. App. at 171. The new evidence received after the October 2010 Board decision includes, in relevant part, VA treatment records and private treatment records showing treatment for a hearing loss disability and a prescription for hearing aids. The Veteran also submitted audiometric testing from November 2012 which did not reveal a hearing loss disability for VA purposes. There was a notation by a treatment provider that the Veteran had a history of noise exposure in service, but no opinion was offered regarding the etiology of the Veteran's hearing loss and tinnitus. Although the above cited evidence is new, in that it was not of record as of the time of the October 2010 Board decision, the Board finds that it is cumulative and redundant, as there was evidence in the Veteran's claims file as of the time of the October 2010 Board decision that revealed a diagnosis of bilateral hearing loss and tinnitus. That is, there was already evidence of a current disability for service connection purposes. Moreover, the Board finds that the evidence is not material because it does not raise a reasonable possibility of substantiating the claims. As noted, the evidence does not suggest that the Veteran's bilateral hearing loss and tinnitus at the time were related to his active duty service. In sum, even when considering the newly submitted evidence together with the previous evidence of record, the evidence does not raise a reasonable possibility of substantiating the Veteran's claims of entitlement to service connection for bilateral hearing loss and tinnitus. Accordingly, new and material evidence has not been received sufficient to reopen the previously denied claims, and the Veteran's (and now appellant's) petition to reopen such claims is denied. Asbestosis The Board denied the Veteran's claim of entitlement to service connection for asbestosis in a February 2009 decision, finding that there was no nexus between the Veteran's claimed lung disorder and active duty service. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision within the requisite time period. Therefore, the Board decision is final. 38 U.S.C. § 7104 (2002); 38 C.F.R. § 20.1100 (2008). The evidence received since the February 2009 Board decision includes evidence that is both new and material to the claim. See 38 C.F.R. § 3.156. For example, the Veteran submitted two medical source statements from his treating physician indicating that the Veteran's claimed lung disorder may be related to active duty service. Specifically, in July 2009 the Veteran's treating physician submitted a letter saying that the Veteran had COPD, and that the Veteran had stated he was exposed to asbestos during service; the treating physician indicated that if this were confirmed, then the present disability was directly related to this exposure. In February 2012 the same treating physician indicated that the Veteran had COPD and asbestosis and that after reviewing the file it was more likely than not that the current disability had its onset during active duty service, due to chemical exposure. This new evidence addresses the reason for the previous denial; that is, a nexus to service, and raises a reasonable possibility of substantiating the claim. The credibility of this evidence is presumed for purposes of reopening the claim. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the claim is reopened and will be considered on the merits. Analysis Asbestosis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a chronic disability becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant and Veteran or obtained on their behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran (and now appellant) has contended that the Veteran developed a respiratory disability during his active service as a result of exposure to asbestos. As an initial matter, the Board notes that the Veteran was diagnosed during the course of the appeal with COPD, but not asbestosis. Indeed, none of the Veteran's treatment records document an asbestosis diagnosis, although the Veteran's treating physician referenced an asbestosis diagnosis in the February 2012 correspondence. The first criterion for establishing service connection has been met and the question becomes whether the respiratory disability was related to service. Service treatment records show no evidence of a respiratory disability. During the Veteran's Reports of Medical History at separation from each period of service in December 1969 and September 1975 the Veteran specifically denied having any asthma, shortness of breath, or chronic cough. The Veteran had a chest x-ray in May 1974 which was also negative for any respiratory disability. The first treatment for a respiratory disability following service was in December 1989 when the Veteran sought treatment after having pneumonia five months prior. His chest x-rays were normal, but the Veteran was diagnosed the following year with a chronic cough. Nonetheless, there is no evidence of treatment or complaints of a respiratory disability for approximately 15 years after separation from service. As there is no competent evidence of a chronic respiratory disability in service or within one year following discharge from service, competent evidence linking the current condition with service is required to establish service connection. In this case, as noted, in July 2009 the Veteran's treating physician, Dr. J.W., submitted a letter indicating that the Veteran had COPD and severe lung scarring, and that the Veteran had stated that he was exposed to asbestos during military service. The physician continued that if this was confirmed, then the present respiratory disability can be directly related to this exposure. In July 2011 the Veteran underwent VA examination in connection with his claim. At the time he reported being exposed to asbestos while serving as an auto mechanic during service. Specifically, he asserted that the break dust contained asbestos, and that he began having upper respiratory infections in the 1970s. He indicated that he had been taking respiratory medication regularly for 15 years. The Veteran asserted that his respiratory disability limited his ability to do physical activities. He admitted having a history of tobacco usage for approximately 30 years, but that he stopped in 1998. After reviewing the physical examination findings and the prior treatment records, the VA examiner opined that the Veteran did not show signs consistent with asbestos exposure or asbestosis. The VA examiner concluded that the Veteran did not have asbestosis. In February 2012 the Veteran's treating physician submitted another statement indicating that he had reviewed the Veteran's service treatment records and the treatment records detailing the Veteran's COPD and asbestosis. The physician concluded that it was more likely than not that the present disability had its onset during active duty service due to chemical and brake dust exposure and that it had persisted since then. Unfortunately, as noted the Veteran passed away in June 2014. In August 2015 a VA examiner reviewed the Veteran's file to determine whether the Veteran's COPD was due to or caused by asbestos exposure during service. After a review of the evidence the VA examiner opined that it was less likely than not that the Veteran's COPD was incurred in service, noting that he or she was unaware of any medical literature that would provide evidence that asbestos exposure would predispose the development of COPD, and that the Veteran's prior tobacco use was well known to be a significant risk factor in the development of COPD. After a review of the evidence, the Board affords great weight to the VA examiners' opinions, when viewed together. These opinions are based on a review of the Veteran's claims file as well as (in one instance) a physical examination of the Veteran. Moreover, the VA opinions cite to medical records to support the findings. Conversely, limited weight is given to the opinions of the Veteran's treating physician. The treating physician opinions do not provide any support for the findings and they appear to be more conclusory statements. While finding that COPD began in service, these opinions do not account for the normal clinical evaluations at separation from service or the Veteran's denial of relevant symptoms at the time of separation, both of which tend to weigh against the physician's opinion and the claim. In addition, one of the opinions appears to be working on the premise that the Veteran had been diagnosed with asbestosis, which is not borne out in the record. Although the Veteran had a respiratory disability during the appeal, he did not carry a diagnosis of asbestosis. As noted by the VA examiners, there was no evidence of asbestos exposure based on the treatment notes and diagnostic imaging. Despite the treating physician's opinions, the Board notes that the Veteran did not seek treatment for his respiratory disability for 15 years after separation from service, which suggests a lack of chronicity. The Veteran also specifically denied having any respiratory problems at separation from service. Although he had a respiratory disability later in life, there is no evidence to suggest that it was asbestosis. The appellant has submitted medical literature suggesting a relationship between asbestos and respiratory disabilities, and this was reviewed by the VA examiner. Nonetheless, that literature is not specific to the Veteran's claim. The VA examiner made a determination based on a review of the Veteran's medical treatment and his/her own medical expertise. Unfortunately, other than the treatment provider statements and the Veteran's lay statements, the sum of the evidence is against a nexus between the Veteran's respiratory disability and active duty service. Treatment notes are consistent with this finding. While the Veteran (and now appellant) believe that the respiratory disability was related to service, the evidence does not show that either had any specialized training in respiratory illnesses and as lay persons they are not qualified to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of a respiratory disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, lay opinions as to the diagnosis or etiology of the Veteran's respiratory disability are not competent medical evidence. Moreover, whether any symptoms the Veteran experienced in service or following service were in any way related to his respiratory disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the lay statements regarding the etiology of the Veteran's respiratory disability are not competent medical evidence. The Board finds the opinions of the VA examiners to be significantly more probative than the lay assertions and the treating physician's statements. In making this determination the Board has considered the applicability of the benefit of the doubt doctrine. However as the preponderance of the evidence is against the claim, that doctrine is not for application and service connection must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. Cause of death Dependency and indemnity compensation is available to a surviving spouse who can establish, among other things that the Veteran died from a service-connected disability. 38 U.S.C. § 1310. Service connection for the cause of the Veteran's death can be established by showing that a service-connected disability was either the principal cause of death or a contributory cause of death. 38 C.F.R. § 3.312(a); see 38 U.S.C. § 1310; see also 38 U.S.C. §§ 1110 and 1112 (2012). A service-connected disability is the principal cause of death when that disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is one that contributed substantially or materially to death, combined to cause death, and aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 C.F.R. § 3.312(c). Although there are primary causes of death that by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, even in such cases, consideration must be given to whether there may be a reasonable basis to hold that a service-connected condition was of such severity as to have a material influence in accelerating death, where the service-connected condition affected a vital organ and was of itself of a progressive or debilitating nature. As noted, in this case the Veteran's immediate cause of death was cardiac arrest, acute respiratory failure from chronic rejection and pneumonia, and chronic fungal pneumonia. Other significant conditions included bacterial pneumonia, pneumothorax, acute renal failure, and COPD. At the time of his death, the Veteran had no service-connected disabilities. The appellant has contended that the Veteran had been found completely and permanently disabled for nonservice-connected pension due to COPD in 1998, and that this should be sufficient for establishing service connection for COPD. Nonetheless, the criteria for determining nonservice-connected pension and that of a service-connected disability are different. As explained in greater detail above, the Veteran's respiratory disability does not meet the criteria for entitlement to service connection. There is no indication that any of the other diseases listed on the death certificate were in any way related to the Veteran's military service. Given that the sum of the evidence suggests that a disability incurred in or aggravated by service did not cause or contribute to the Veteran's death, service connection for the cause of his death is not warranted. The preponderance of the evidence is against the claim, thus the benefit of the doubt rule does not apply and the claim must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. 49. ORDER New and material evidence has not been received to reopen the claim of entitlement to service connection for bilateral hearing loss. New and material evidence has not been received to reopen the claim of entitlement to service connection for tinnitus. New and material evidence has been received to reopen the claim of entitlement to service connection for asbestosis, and to that extent, the claim is granted. Entitlement to service connection for asbestosis is denied. Entitlement to service connection for cause of death is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs